Sandi Tabor, Vice President of Government
Affairs, Lignite Energy Council

Guest

Andrew Frank, Staff, Commission to Study
Racial and Ethnic Bias in the Courts

Chair Kapsner called the meeting to order at 10:00 a.m. and drew Committee members'
attention
to Attachment B (June 4, 2010) - minutes of the February 12, 2010, meeting. It was noted that
Aaron
Birst should have been included in the list of those present at the February 12 meeting.

It was moved by Aaron Birst, seconded by Judge Anderson, and carried that
the minutes, as
corrected, be approved.

Chair Kapsner briefly reviewed information distributed to subcommittee members in the
March 31
mailing which included attorney numbers by age and location, a summary of court facility
improvement and maintenance grants, state laws regarding joint powers agreements and regional
planning councils, guidelines for New York court facilities, and a recently completed survey of
states
regarding facility and court security funding and the status of public administrators, guardians,
and
conservators. She said the information served as general background for subcommittee
discussion
of access and technology questions reviewed at the February 12 meeting [See February 12
meeting
minutes, Appendix B]. She then requested summaries of the subcommittees' discussions and
tentative conclusions

Subcommittee Reports

Subcommittee Regarding Questions 1 and 2

Judge Anderson served as Chair of the subcommittee reviewing Questions 1 and 2 [ What
core
services must continue to be offered in every county on a regular basis? How will those services
be
impacted by technology in the future?]. He said the subcommittee had arrived at the following
general conclusions with respect to Question 1:

1. At a minimum, court should be scheduled in every county at least once per month.
Residents should have access to a judge at least on a monthly basis. Judge Anderson noted
that the subcommittee had reviewed source material developed by the National Center for
State Courts. He said the subcommittee concluded that a less frequent scheduling approach
would result in unnecessary delay. Additionally, he said, the subcommittee reviewed those
kinds of cases or proceedings that would require a judge be available more frequently than
once per month, such as bond hearings, juvenile proceedings, and protection order
proceedings. He said conducting proceedings by telephone, interactive video, or other
technological aids would assist in the expedited handling of these kinds of proceedings.

2. Clerk of court services may not be a necessary core service that must be provided
in each
county on a routine basis, particularly with respect to filing and record-keeping. Judge
Anderson said subcommittee members discussed the perception that those requiring court
services must have a face to face interaction with court staff. He said there was a tentative
conclusion that ensuring that level of access may be problematic in terms of sustaining
adequate staffing. The subcommittee, he said, discussed alternative methods of providing
access to clerk services such as implementing kiosks through which services could be
obtained. He said subcommittee members noted that regionalization of jury management
functions had already occurred in the eastern part of the state and similar alternatives to some
kinds of clerk services may be a logical progression.

3. Facilities required for jury trials would not be a core service that must be available
in every
county on a regular basis.

4. Appropriate security measures should be a core service maintained in every
county on a
regular basis.

With respect to Question 2, Judge Anderson said the subcommittee reached the following
general
conclusions:

1. E-filing and document access through implementation of the Odyssey system are
significant developments that will affect court services. Judge Anderson said a possible
future
issue identified by Judge Racek, a subcommittee member, concerned moving old files and
papers to an electronic format.

2. Availability of adequate technological resources is important. Judge
Anderson said the
subcommittee discussed the use of interactive television, the use of and access to digital
recording, and the use of appearances by telephone. He said subcommittee members
concluded that in counties without ITV capability, telephone systems integrated with digital
recording systems would be beneficial. He said availability of such an arrangement would
facilitate appearances by telephone and would be superior to recording the proceeding from
a speaker phone.

3. Ability of each county to provide and support appropriate technology is
critical. Judge
Anderson said there was general agreement that Internet access and the ability to implement
Odyssey effectively are important contributions to providing adequate services.

Dave Maring noted that his subcommittee reached a similar conclusion regarding the issue
of
maintaining jury-ready facilities. He asked whether there was any discussion of particular
counties
or locations where jury-ready facilities should be considered a core service.

With respect to the tentative conclusion that filing and record-keeping would not be
considered a
core service, Justice Kapsner asked whether that conclusion was with respect to clerk services as
a
basic point of entry to the court process. Judge Anderson said the subcommittee focused on
whether there was a core need for a personal presence and concluded there
likely is not. However,
he said, there was general recognition that access to services would be a core
component. He said
the discussion touched on possible ways other than through a personal presence clerk-related
services could be provided.

In response to a question from Sally Holewa, Judge Anderson said the general conclusion
was that
the public expects to be able to view and use court record information and there was an
assumption
that implementation of the Odyssey system would enable that access. However, he said, there is
the
related issue of access to older case files and records that are not part of the Odyssey system.

Sally Holewa wondered whether, in the discussion of possible core services and what
could be
done, it would be worthwhile to discuss whether a particular approach is simply a good idea. For
example, she noted with respect to possible changes in clerk presence that there are related
discussion points regarding political ramifications, the feasibility of changing county
organization,
and whether duties could be effectively transferred to current state employees without expanding
the
number of employees.

Justice Kapsner suggested the Committee should not, at this point, develop that level of
specificity,
but, rather, should develop an idea of what the Committee concludes should be the
evolution of the
system. If it is ultimately decided, she said, that that idea is a good one, then the discussion could
turn to the details of how to achieve the idea. Additionally, she stressed the importance of
recognizing that planning must take into account what available resources might actually
permit.

Judge Anderson observed with respect to possible system changes that a basic premise
should be
that citizens should not have to travel an inordinate distance to obtain access to routine kinds of
judicial services.

With respect to a routine, once per month, judge presence, Judge Racek said the basic issue
is not
how often a judge travels to a county, but how often a judge does not travel to a
county. He
observed that the system's operation is driven by artificial lines that designate counties, which
often
results in inefficient and counter-productive processes. He said efficient handling of judicial
business
is too often delayed because artificial boundaries dictate that activities must occur at a certain
time
and place. He suggested that within the current administrative structure of four units everything
should be considered as part of the unit rather than limited by artificial lines. He said it would be
worthwhile to consider adjusting clerk workload to focus only on that work that is necessary to
conducting the court's business. For example, he said clerks often perform tasks with respect to
traffic and child support enforcement that are not integral to the court's business. Limiting or
eliminating clerk involvement in those areas, he said, would enable establishing a more
meaningful
presence in other counties where more work is or could be done.

Sally Holewa observed that statutes governing county venue will have a bearing on the
extent to
which services can be reallocated.

Justice Kapsner suggested the Committee should consider the issues Judge Racek
identified, e.g.,
the feasibility of moving work responsibilities, which may be made easier with the advent of the
new
management system, and the issues related to venue. She said venue will continue to be an
important consideration as there is a difference between where a court has the authority to act
and
where the case-related files and papers are maintained.

Judge Racek said it is less important to have cases heard in a static location dictated by
artificial
requirements than it is to enable a case to be heard where it is convenient for all involved - judge,
attorneys, and parties. For example, he said there should be no reason why a case filed in Traill
County could not be heard in Fargo if the parties agree.

In response to a question from Dave Maring, Sally Holewa said the four court
administrators
conduct a range of administrative duties throughout their respective units and without regard to
county lines within the units. And, she said, some administrative practices extend across unit
lines.
There are, however, she said, some differences in practices among the several judicial
districts.

Dave Maring wondered why there could not be four judicial districts to coincide with the
four
administrative units. Judge Anderson observed that significantly changing judicial election
districts
would likely not be popular with judges. Additionally, he said, changing to fewer judicial districts
may result in a tendency to centralize operations within the larger judicial districts with fewer
potential contacts by judges with electors in the district.

Aaron Birst said counties may be amenable to the idea of judicial services being available
when case
numbers reach a certain level, rather than a judge being expected to travel to a county once per
month without regard to how many cases may actually be heard. Conversely, he said there is
some
level of dissatisfaction in rural counties when matters are held through the month to be handled
when
the judge arrives on the routine schedule. Judge Racek observed that the irony is that those
matters
awaiting a judge's signature could likely be signed the next day if the matter could be handled in
an
adjoining or nearby county.

Rep. Delmore observed that judicial services in larger counties are sometimes perceived to
be more
impersonal. She said centralized services are not necessarily an advantage to the people who
receive
those services.

Dave McGeary explained that when juvenile court time standards were recently reviewed it
was
found that larger metropolitan areas were struggling to meet the standards, while in smaller areas
there was an appreciation for completing the work so the matter could be handled when the judge
arrived.

Following further discussion, Chair Kapsner inquired whether Questions 1 and 2 should be
further
considered by the subcommittee or if the issues should be taken up by the full Committee.

Judge Anderson suggested further discussion of the issues could be addressed by the full
Committee. Committee members agreed.

Subcommittee Regarding Question 3

Aaron Birst served as Chair of the subcommittee reviewing Question 3 [How can the
interaction
between the judiciary and the county governments that house judicial facilities be structured in a
manner that is most beneficial to both?]. He said the subcommittee reviewed a good amount of
information and reviewed in particular the facilities situation in the western part of the state. He
noted
that Stark County has become a function trial center because there are few trial-ready facilities in
the
area. He said it appears that attempting to build a system to accommodate jury trials is ill-advised
since the number of jury trials would not justify the effort or expense. He said there are issues
with
respect to adequate communication between the counties and the judicial system. Counties, he
said,
are willing to work with the courts but it is often not clear what the courts want or need. He said it
may be worthwhile to consider the development of basic facility standards, which would be a
benefit
to the courts and would assist counties in considering potential changes to existing facilities.

Justice Kapsner noted that county regional planning is an ongoing and active process and
wondered
whether the judiciary should seek to be a part of that process. She suggested the court
administrators
may be in a position to participate if court-related issues arise during the planning process.

Subcommittee Regarding Questions 4 and 5

Dave Maring served as Chair of the subcommittee reviewing Questions 4 and 5 [ Should
differing
courtroom facility standards be developed depending upon frequency and nature of courtroom
use?
Should different funding mechanisms be sought for judicial use of space in county facilities?].
There
were the following general observations and conclusions with respect to the Questions.

1. Court facilities improvement and maintenance grants. Dave Maring drew
attention to
Attachment B (March 31, 2010), which summarizes grants made by the Court Facilities
Improvement Advisory Committee. He said the subcommittee concluded that the grants
tend to be cosmetic in nature and rather than for significant remodeling projects that might
create courtroom space or additional facilities. He said there appears to be no other source
of state funding available to the counties for facilities.

2. Changes in county offices. The subcommittee reviewed the toolchest
legislation which
provides mechanisms for counties to combine offices or change the elected or appointed
status of county officials. He said it appears smaller counties are combining offices, with the
result of approximately eighty fewer elected county officials in the state. He said the
subcommittee reviewed the process by which certain counties may elect to transfer the clerk
of court office to the state.

3. Efforts to secure state funding for county facilities. The subcommittee
reviewed recent
attempts, all unsuccessful, to obtain state funding by way of rent or other funding sources
to offset the cost to the counties of maintaining court facilities. He said it may be worthwhile
to consider funding based on a some type of formula, perhaps one based on the level of
actual court activity in the facility.

4. Different facilities in different counties. The subcommittee discussed the
potential need for
different types of facilities in different counties based on the kind of court activity within the
county.

5. General conclusions. Dave Maring said the subcommittee identified four
general concepts
that could form the basis for further discussion of facilities issues: 1) There is likely no need
for large, jury-ready courtrooms in every county, 2) There is likely no need to provide the
same level of services in every courthouse, 3) It may be worthwhile to consider some level
of state funding for court facilities, including partial funding based on the amount of court
activity, and 4) Courtroom and court facility specifications that are linked to the level of court
activity in the facility should be considered.

In response to a question from Rep. Delmore, Aaron Birst said there have been no specific
discussions at the county level concerning consolidation of court facilities. He said counties have,
however, consolidated employee and county official positions. He cautioned that consolidation
tends
not to reduce costs.

Sally Holewa observed that the current process by which clerk services can be provided by
county
employees, with reimbursement from the state, actually serves to contain costs. She said the state
pays only for the work that is needed to provide clerk services and the payment is based on
county,
not state, compensation levels. She said if all clerk of court work were transferred to the state an
additional twenty-seven state FTEs would be required.

With respect to facilities, Judge Racek agreed one significant recommendation the
Committee could
make would be with respect to the establishment of facility standards. Judge Anderson agreed
that
minimum standards, at least, would be useful. Aaron Birst agreed also that most counties would
find
standards beneficial in determining whether and what kinds of changes should be
considered.

Judge Racek noted that Cass County had recently hired a consultant to conduct a space
needs
assessment of the county courthouse, and a report was issued. He said the assessment is specific
to Cass County but may serve as a general guide in the Committee's discussion of possible
standards. He stressed that the judicial system can provide useful guidance to counties and to
legislators in identifying general standards, explaining what would be considered adequate
facilities
for the kind of work done in particular courthouses, and explaining what is needed and why it is
needed. A copy of the Cass County space needs assessment report will be distributed to
Committee
members.

Chair Kapsner inquired whether the Committee consensus is that general facility standards
should
be developed, with an acknowledgment that standards will differ based on the level of activity
within
a particular category of facilities.

Judge Racek observed that the Committee need not develop the standards itself, but rather
could
include in its final report a recommendation that standards be developed.

Cynthia Lindquist said that standards would essentially serve as guidelines for counties. The
more
important issue over time, she said, is whether there is a long-term commitment for maintenance
of
the facility.

Justice Kapsner said the Committee could perhaps identify the key elements of any possible
standards or guidelines, i.e., those facility characteristics that must be generally present or
available.
Cynthia Lindquist emphasized the need to take into account the differences between rural and
urban
facility locations.

In response to a question from Chair Kapsner regarding the subcommittee's work, Dave
Maring
said the subcommittee would try to meet again to further discuss the initial responses to the
questions.

Chair Kapsner asked whether the Committee should consider making any
recommendations
regarding possible mechanisms for facility funding. She said funding mechanisms would likely
have
some relationship to the level of court use or activity in the facility.

In response to a question from Judge Narum, Sally Holewa said the judicial system does
not now
pay rent to any county for facility space. She said there is also an issue regarding whether rent
should
be paid by the judicial system without there being any control of or significant involvement in
facility
standards.

Judge Anderson noted that in the survey of states regarding facility funding [Attachment F
(March
31, 2010)] there were comments reflecting a resistance to state funding because of the fear that at
some point the facility would be closed.

Chair Kapsner said the Committee would continue discussion of possible facility standards
at future
meetings.

Other Study Areas

Committee members then turned to a review of planning issues in other areas previously
identified
by the Committee: privacy, judicial selection and general respect for the rule of law and the
judicial
system, aging community, and the adequacy of information and education about the courts and
the
judicial process.

Chair Kapsner asked whether subcommittees should be formed to discuss each issue or
whether
particular issues should be reserved for initial discussion by the full Committee.

Privacy

Sally Holewa observed that the Supreme Court's recent amendments to Rule 3.4 of the
Rules of
Court and Administrative Rule 41 regarding personal information in court files have addressed
some
of the concerns about disclosure of personal information. She said there are residual issues about
the
kinds of record information that should be disclosed on the system's website and about whether
documents should be accessible through the website.

In response to a question from Chair Kapsner, Committee members tentatively agreed to
defer
further discussion of privacy issues until the practical effect of the recent rule amendments can be
assessed.

Judicial selection and respect for the rule of law and judicial system

Dave Maring said there has been considerable discussion around the country regarding
methods
of judicial selection. However, he said his sense is that the issue is not a compelling one in North
Dakota at this point. He said many judicial elections are uncontested and in those elections where
there are competing candidates the conduct is generally reasonable. He suggested that the issue
of
judicial selection may be a topic for future discussion in light of changes in judicial campaign
conduct in other states, but the issue likely does not warrant extended review at this time.

Sally Holewa wondered whether the general public has been asked what might be a
preferable
method for selecting judges or what the general public considers important to know about
judicial
candidates.

Judge Racek noted that issues regarding judicial selection are less serious in North Dakota
because
of the ease with which litigants can demand a change of judge in a case.

Chair Kapsner agreed a full review of the issues associated with judicial selection may not
be
needed, but suggested it may be helpful to identify a few general observations about the topic.
Dave
Maring agreed to consider a general framework of issues for a future meeting.

Aging community

Justice Kapsner observed that issues associated with the state's aging population and access
to the
judicial process will become more important as time passes. She said if there is any move
towards
centralizing services there will likely be an impact on how the aging community gains access to
judicial services.

Rep. Delmore said technology may be a useful tool to aid access for older citizens but there
is a
related question regarding whether there is sufficient knowledge about how to use the technology
if it is available.

Justice Kapsner noted that there are persistent issues regarding the availability and funding
for
public administrators, who often provide support services for older citizens. She said there has
been
little interest in addressing the issues legislatively but the status of public administrators should be
discussed and additional information obtained.

In response to a question from Justice Kapsner, Randy Albrecht said the Long-Term Care
Association has developed a new updated demographic report regarding the state's aging
population.
The report, he said, seems to have reaffirmed earlier findings regarding the status of the state's
aging
population and the migration of the population to other areas in the state. He said the report
might
be a resource for the Committee's discussion of aging community issues.

Following further discussion, Chair Kapsner asked that a subcommittee consisting of Aaron
Birst,
Randy Albrecht, Cynthia Lindquist, Judge Racek, and JoAnne Hoesel review the topic and offer
observations at a future meeting.

Information and education about the courts and the judicial process

Judge Anderson said the adequacy of information about the court system and how the
public
obtains that information are persistent concerns.

Cynthia Lindquist stressed the importance of ensuring the information to which the public
has
access, particularly information provided through websites, is accurate and properly filtered.

Justice Kapsner wondered whether it would be worthwhile to have the Supreme Court's
website
evaluated from the perspective of members of the general public to determine whether the
website
offers useful, easily accessible information.

Sally Holewa noted that there are several pamphlets available to the general public which
describe
various parts of the judicial system and court processes. She said some pamphlets are more
useful
than others.

Following further discussion, Committee members agreed it would be useful to obtain an
overview
of the educational and informational resources developed by the judicial system and made
available
to the general public.

Other Matters

Chair Kapsner said the issue of redistricting had been referred to the Committee for review.
She
said the review would likely consider issues related to administration as well as possible political
issues associated with any change to district boundaries. She said a subcommittee would be
designated to conduct the initial redistricting review.

There being no further business, the meeting was adjourned at 1:30 p.m.